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21 October 2012

Copyright Law and a Derivative Culture

Note: This post, among other things, deals with some subjects which were discussed in an article published in Practical Lawyer, October 2010 — 'Copyright Law and a Derivative Culture: Perceptions of Art and Artists' by Nandita Saikia — and reproduces/adapts some text from the article.

Creatio ex nihilio — creation from nothing — belongs to realm of theology, and is attributable to God alone. It has no standing in relation to a law which grants legal protection to works which are the creations of the human mind. ‘That which hath been is now; and that which is to be hath already been; and God requireth that which is past.’ [Ecclesiastes 3:15]

In the context of copyright law, and in the context of the works of art (including literature and music) which are produced of human labour, there does not exist a real possibility of anyone being able to create works which are entirely original — all of us are, to a greater or lesser extent, indebted to the works of those who came before us. We may choose not to acknowledge earlier works. The knowledge of our forbears may be lost upon us. We may live, isolated from almost all that came before us, in the vacuum of our own times where ‘there is no remembrance of former things; neither shall there be any remembrance of things that are to come with those that shall come after. For the living know that they shall die: but the dead know not any thing, neither have they any more a reward; for the memory of them is forgotten.’ [Ecclesiastes 1:11 and 9:5]

And it may be that living in this vacuum, isolated from all but the immediate past, leaves us doomed to repeat it, and makes our creative endeavours — whether in the sphere of high art or on the runways of fashion — proceed in a cyclical manner. ‘The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.’ [Ecclesiastes 1:9] None of us can deny that we build on earlier works to create ‘new’ works with a semblance of ‘originality’; to claim otherwise would be either an act of unrestrained hypocrisy or an act of profound ignorance (of our collective cultural legacy). Our familiarity, however limited, with the works of our predecessors, and our drawing from it, is all that keeps us from reinventing the wheel — so to speak — each time we stand before an easel or sit down with a notebook.

Nonetheless, despite the fact that absolute originality is a myth in the temporal world, one of the cornerstones upon which the law which protects the fruits of our creative endeavours — copyright law — not only assumes ‘originality’ but also almost invariably requires it if a work is to be protected by law. The intention of demanding ‘originality’ is clear enough: Those who do not put in creative efforts, and who merely copy the works of others, should not benefit from ‘stealing’.

In fact, in the seminal 1978 case of R G Anand v. Delux Films, the Supreme Court categorically stated: "...it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment: "Thou shalt not steal" which forms the moral basis of the protective provisions of the Copyright Act of 1911. It is obvious that when a writer or a dramatist produces a drama it is a result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyrighted work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour. It is also clear that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure, is sufficient to indicate that it is a copy."

At the heart of this lack of acceptance for derivative works resembling the 'original', probably lies an age old prejudice against mere craftsmen and in favour of artists — the latter have always enjoyed more prestige as being a creators of ‘art’ rather than a mere ‘pedlars of trade’, so to speak.

If one were to consider non-literary artistic works, history reveals that copyright protection was first granted to them via the 1735 Engraver’s Act. This Act was passed largely as a result of lobbying by the artist William Hogarth, whose works lent themselves well to engraving. It selectively protected some engravings: those which were ‘original’. As a result, talented engravers who did such things as make engravings of the works of Old Masters received no protection while engravers who created original works were accorded protection (regardless of their technical proficiency or the artistic merit of their works).

Thus, legal protection was accorded based on creativity, not skill; and engravers whose works did not pass the test of ‘originality’ were confined to the role of mere craftsmen. Although the law was subsequently amended to protect all engravings, the trouble is that our creative works (of whatever nature) have never been entirely original. Consequently, establishing what would constitute an original work for the purposes of the law has always been an uphill task.

While artists have copied each others' works, attempts have been made to delineate what constitutes permissible ‘copying’ from that which would not be permissible, and would, in fact, explose the person copying to legal liability. In order to do so, those involved in legal processes, right from legislators to judges, have created a number of constructs such as fair use, fair dealing, substantiality, and transformative use to attempt to designate criteria to determine precisely what would constitute a work worthy of legal protection.

Unfortunately, the first Indian copyright statute was passed in 1847, and over a hundred and fifty years of copyright jurisprudence has not provided any clear answers to the question of at precisely what point the law would consider a work to no longer be original enough to be eligible for protection under copyright law. Under Indian law, if one were to concentrate on the violation of copyright alone: copyright infringement is both a civil and a criminal offence. Although the law recognises both primary and secondary infringement, it does not clearly differentiate between consumptive, creative and commercial infringement. And as a result, it grants no explicit leeway to the authors of derivative works, especially if they choose to commercialise their derivative works.

In addition to this, the violation of an author's right to attribution (as contemplated by Section 57 of the Copyright Act, 1957) is a criminal offence under Section 63 of the Copyright Act.

As such, the authors of derivative works could quite easily find themselves in a ‘Catch 22’ situation: if the provenance of a derivative work were acknowledged, it would be much easier to prove that the ‘derivative-author’ had committed copyright infringement, and if the provenance of the work were not acknowledged, the derivative-author could well be accused of having violated the moral right of the ‘original author’, and, possibly, of having committed copyright infringement to boot.

The term ‘derivative work’ is not defined in the Copyright Act, which confines itself to defining ‘adaptations’ in terms of a change of format such as the conversion of a novel into a screenplay. The statutory definition excludes from its scope adaptations which are created by adding substantial new material, or by completely changing the purpose of the earlier work. As such, the position of various forms of derivative works under Indian copyright law is unclear. It may be possible to argue that adaptations, derivations and transformations are distinct species, and that adaptations and derivations both belong to one genus while transformations belong to another genus. An ‘adaptation’ could be considered to be a work which is essentially the same as the original work but is in a different format, while a ‘derivation’ could be considered to be a relatively new work based on the original work but incorporating an original contribution by its creator (such as a spin-off of a television series). In contrast to this, a ‘transformation’ could be considered to be a completely new work inspired by the raw data contained in the original work.

If these interpretations were accurate, unauthorised adaptations and derivations would infringe the copyright in the earlier work, assuming that the earlier work itself was protected by copyright, but a transformation would arguably not infringe the copyright in the earlier work and would not require authorisation from the owner of the copyright in the earlier work for its legal creation. This is because while both adaptations and derivations would substantially rely on the body of the earlier work, a transformation would only use the idea contained in the earlier work, and ideas are, in any case, not protectable by copyright.

Propositions such as these are, however, entirely speculative in nature. They merely serve to highlight grey areas in Indian copyright law, and raise questions about what sort of works would be considered to be eligible for copyright protection, and whether a separate copyright would subsist in derivative works of any kind.

Derivation, by no means, presents a 'new problem' in the quest to establish what constitutes originality for the purpose of the law. Whether in modern or pre-modern times, creative works have rarely been entirely original works. ‘Is there any thing whereof it may be said, See, this is new? it hath been already of old time, which was before us.’ [Ecclesiastes 1:10]

What has changed in the modern world is that new technologies including software have allowed for the creation of derivative works on an unprecedented scale (by persons who could well have displayed little intrinsic talent had they been bereft of technological tools). Unsurprisingly, the proliferation of technology-centric derivative works (such as Photoshopped images) has caused the line between original and derivative works to become increasingly blurred, and has raised pressing questions of what 'originality' means in a derivative culture, and who would be considered to be an artist.

In effect, the craftsmen of yore are the technicians of today, in the eyes of both the law and the public. Regardless of their skill, those who happen to use technological means to create derivative works are rarely considered to be artists although, of course, there are other factors at play as well, such as the existence of an audience. These factors cumulatively influence the perception of artists and explain why some persons who, for example, create composite software-enhanced images are perceived as artists and have their works hung in galleries, while others who do the same are perceived as technicians and are denigrated for their reliance on technology.

While the law certainly does not prohibit ‘technicians’ or ‘craftsmen’ from authoring and owning copyrighted works, it does generally prohibit non-original works from being protected. And the ground reality is that the likelihood of a person’s work being considered to be original is low if that person is not perceived as an artist in the first place.

Artists are, however, no longer a special breed. True, persons who devote themselves to art exist, but there is also a great deal of art which is being created by ‘some kid in his bedroom’, to borrow a phrase from Aram Sinnreich, and copyright law appears to be virtually oblivious to that kid who may be creating amazing works of derivative art, possibly with the help of sophisticated technology now available over-the-counter.

And as a result of not truly appreciating the changing profile of artists in the modern world, it could well be that the age old differentiation between ‘artists’ and ‘craftsmen’, with all its attendant implications and insinuations, has remained a latent force in shaping copyright law. In fact, quite simply put, copyright law appears not to have truly kept up with the reality of a derivative culture in which creative works are often instantaneously accessible by everyone, immediately editable by anyone, and continually subject to reinterpretation. Absolute originality was never truly alive and kicking in the context of creative works, and now, there is little doubt that it is, for all practical purposes, dead. ‘The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.’ [Ecclesiastes 1:9]

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